A late application may still proceed where the circumstances, considered together, justify an extension of time.
In [2023] FWC 2378, the Fair Work Commission granted an extension of time for a dismissed employee to pursue a general protections application under the Fair Work Act 2009.
The application was lodged 18 days outside the statutory 21-day time limit. Commissioner Cirkovic found that, when all relevant circumstances were considered together, exceptional circumstances existed to justify allowing the application to proceed.
Background
The employee’s employment ended on 18 May 2023. He initially lodged an unfair dismissal application, believing he had completed the minimum employment period required to bring that type of claim.
The employer subsequently disputed his employment start date and stated that his dismissal related to poor attendance. The employee’s representative sought clarification of the start date and received further information from the employer.
The unfair dismissal application was discontinued, and a general protections application was lodged on 26 June 2023 — 18 days after the applicable deadline of 8 June 2023.
The employee contended that his absences were connected to illness and alleged that his dismissal involved prohibited reasons, including discrimination related to disability and issues concerning temporary absence due to illness or injury. The employer disputed the merits of those allegations.
Why did the Commission extend the time limit?
Under section 366 of the Fair Work Act 2009, a general protections application involving dismissal must ordinarily be lodged within 21 days. The Commission may allow additional time if satisfied that exceptional circumstances exist.
Commissioner Cirkovic considered the statutory factors individually and collectively.
1. The reason for the delay
The Commission accepted that the employee had been mistaken about his employment start date and initially pursued an unfair dismissal claim. He only became aware of the employer’s stated attendance-related reason for dismissal when the employer forwarded its response to that application.
The Commissioner considered the explanation credible. This factor favoured an extension.
2. Steps taken to challenge the dismissal
The employee had acted promptly to challenge his dismissal by lodging the initial unfair dismissal application shortly after his employment ended. This also favoured an extension.
3. Prejudice to the employer
The employer argued that organisational changes and the departure of people involved in the dismissal could make it more difficult to establish what had occurred.
The Commission did not find that granting the extension would cause material prejudice. However, the absence of prejudice was treated as a neutral factor rather than, by itself, a reason to grant an extension.
4. The apparent merits of the application
The Commission was not required to determine the underlying general protections claim at this preliminary stage. It found that the case was not without merit or substance.
The Commissioner also noted that, in a general protections matter of this kind, the employer would have to establish that the dismissal was not for a prohibited reason.
This factor weighed slightly in favour of granting an extension.
5. Fairness between people in similar circumstances
This factor was neutral in the circumstances.
The outcome
After weighing all the relevant considerations, Commissioner Cirkovic was satisfied that exceptional circumstances existed and exercised the discretion to extend the time limit.
The application was referred to the Fair Work Commission’s General Protections Team for further handling.
Importantly, the decision did not determine whether the dismissal was unlawful or whether the employee’s general protections allegations would ultimately succeed. It determined only that the late application could proceed.
Key lessons
- The 21-day deadline is important. Employees should act promptly and obtain advice about the correct type of application.
- An initial application may be relevant. Promptly challenging a dismissal through another process can be a relevant consideration when explaining a later application.
- Explain the entire delay. The Commission considers the reason for delay alongside the other statutory factors. A credible explanation is helpful, but no single factor necessarily determines the outcome.
- Exceptional circumstances are assessed collectively. Several factors that may not be exceptional in isolation can, when considered together, justify an extension.
- An extension is not a finding on the underlying claim. It allows the matter to proceed; the substantive allegations remain to be determined.
This decision demonstrates that missing the statutory deadline does not automatically prevent a general protections application from proceeding. However, an extension is discretionary and depends on the particular circumstances of the case.
Decision and representation
Case: [2023] FWC 2378
Decision date: 15 September 2023
Commission Member: Commissioner Cirkovic
Employee’s representative: Mr Dircks of Just Relations, appearing with permission.
Employer’s representatives: Mr Chasumba and Mr Liu.
Category: General Protections; Dismissal; Extension of Time; Fair Work Commission Procedure.
Tags: extension of time, 21-day time limit, exceptional circumstances, unfair dismissal application, dismissal, illness and injury
Disclaimer: This article is provided for general information only. It is not legal advice and should not be relied upon as a substitute for advice about an individual matter.